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Proposed Changes to H-1B Lottery Petitions

12.10.2018

On the eve of the Fiscal Year 2020 H-1B lottery season which opens for filing on April 1, 2019, the Department of Homeland Security has published proposed regulations to tweak the H-1B lottery program. The proposed regulations would require companies seeking to file H-1B cap-subject petitions (a/k/a H-1B lottery petitions) to complete an electronic registration with U.S. Citizenship and Immigration Services (“USCIS”) during a 14-day period leading up to the historical filing date (typically, April 1st each year). In addition, the proposed regulations would change the order of the selection process in an effort to afford individuals with a U.S.-based master’s degree or higher a greater chance of being selected. The public comment period with respect to these proposed regulations is open until January 2, 2019. 

The proposed registration system would significantly alter the manner in which employers approach the preparation of H-1B cap-subject petitions. Currently, companies prepare and submit a complete H-1B petition for each individual being sponsored, after which a lottery is conducted to determine which H-1B petitions will be adjudicated. The proposed registration system would change this process by requiring companies to register only basic information about potential H-1B candidates and the job opportunity during the 14-day registration period. The lottery would be conducted based on the registrations and only those selected in the lottery would be eligible to submit a complete H-1B petition. 

The proposed regulations also seek to change the order in which the H-1B lottery is held for the 65,000 regular cap visas and the 20,000 maser’s cap visas. Historically, USCIS conducted the lottery for the master’s cap first, and all unselected master’s cap petitions then became part of the lottery for the regular cap. The proposed regulations seek to reverse the order of the two lotteries, thereby increasing the likelihood that individuals with a U.S. master’s degree or higher will be selected as part of the regular cap. 

The proposed regulations make clear that USCIS wants to finalize the regulations and implement these changes in time for the upcoming cap filing season that begins on April 1, 2019. However, that timeline is aggressive given the bureaucratic processes that need to take place before the regulations are finalized (e.g., conclusion of the 30-day comment period on January 2, 2019; review of comments by the USCIS; review of the final proposed regulations by the Office of Management and Budget; and final implementation). Koley Jessen will continue to closely monitor these potential changes and timelines, but, at least at this point, employers exploring options for filing cap-subject H-1B petitions in the coming year’s lottery process should plan on preparing petitions in a manner consistent with the past several years. 

Please contact one of the immigration specialists in Koley Jessen’s Employment, Labor and Benefits Practice Group if you have any questions regarding these proposed regulations.

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